Supreme Court hands down Bar rules opinion

first_img Supreme Court hands down Bar rules opinion Mark D. Killian Managing Editor The Supreme Court recently amended Bar rules to include a statement that a disciplinary resignation is equivalent to disbarment and to provide a limited exemption from reporting misconduct found by staff lawyers with the Bar Law Office Management Assistance Service.Acting on the Bar’s annual rules package — which was filed in February 2000 — the court also adopted a new rule regarding non-Florida lawyers appearing in Florida courts, but remanded for further study a proposal on how to deal with non-Florida lawyers engaged in mediation or arbitration within the state. Case No. SC00-273.The court said all but one comment filed in response to the rules package addressed a proposed amendment which would have eliminated the deferral of the Basic Skills Course Requirement for government attorneys. After reviewing the comments opposing that amendment, the Bar withdrew the proposal in order to allow for discussion with the opponents to that amendment.The remaining substantive proposed changes include amendment to or the creation of the following rules, bylaws and subchapters: Rule 1-3.2 (Membership Classifications); Rule 1-3.5 (Retirement); Rule 1-3.7 (Reinstatement to Membership); new Rule 1-3.10 (Appearances by Non-Florida Lawyers); Rule 1-7.3 (Membership Fees); Subchapter 2-1 (Seal, Emblems, and Publicity Symbols); Bylaw 2-1.2 (Publicity Symbol); Bylaw 2-1.3 (Usage); Bylaw 2-7.3 (Creation of Sections and Divisions); Rule 3-5.1 (Types of Discipline; Generally); Rule 3-7.1 (Confidentiality); Rule 3-7.4 (Grievance Committee Procedures); Rule 3-7.10 (Reinstatement and Readmission Procedures); Rule 3-7.12 (Disciplinary Resignation from The Florida Bar); Rule 4-1.5 (Fees for Legal Services); Rule 4-8.3 (Reporting Professional Misconduct); Rule 4-8.4 (Misconduct); Rule 6-3.2 (Certification Committees); new Rule 6-3.7 (Emeritus Specialist Status); Rule 6-3.10 (Fees); Rule 6-10.3 (Minimum Continuing Legal Education Standards); Rule 6-12.1 (Basic Skills Course Requirement); Rule 6-12.2 (Administration); Rule 6-12.3 (Basic Skills Course Standards); new Rule 6-12.3 (Requirement); new Rule 6-12.4 (Deferment and Exemption); Rule 6-12.4 (Noncompliance and Sanctions); Rule 10-4.1 (UPL Circuit Committees; Generally); Rule 10-7.2 (Proceedings for Indirect Criminal Contempt); and Rule 10-9.1 (Procedures for Issuance of Advisory Opinions on UPL). The full text of the opinion can be found online at court adopted new Rule 1-3.10 (Appearances by Non-Florida Lawyers). This rule contains provisions formerly found in subdivision (a) of Rule 1-3.2, plus new provisions. The court said the new rule is similar to recently adopted Florida Rule of Judicial Administration 2.061, concerning foreign attorneys. Consistent with modifications to proposed Rule 2.061, the court modified Rule 1-3.10 to remove references to the term “pro hac vice.” Subdivision (a)(2) of Rule 1-3.10 prohibits “a general practice before Florida courts” which is considered “more than 3 appearances within a 365-day period in separate and unrelated representations.” Subdivisions (a)(3) and (a)(4) specifically prohibit appearances by inactive, suspended, or former members of The Florida Bar, or those sanctioned during prior appearance under the rule. Subdivision (b) prescribes the content of a verified motion filed under the rule.The court also added language to subdivision (b)(4), which clarifies that the only requests to be admitted to practice which must be disclosed in the verified motion are those made to a Florida court.“We reject the Bar’s recommendation to amend Rule 3-4.1 at this time,” the court said. “Under this proposed amendment, non-Florida lawyers would be placed on the same footing as a member of The Florida Bar by being subject to the Rules Regulating The Florida Bar, including the Rules of Professional Conduct, for any unethical conduct that might occur during the course of the representation.”The court said because it is not clear how the conduct of non-Florida lawyers who are appearing in mediation or arbitration in Florida without being admitted under Bar rules can be regulated by the court, the justices remanded the matter to the Bar for further consideration.The court, however, adopted the Bar’s proposed amendments to Rules 3-7.12 and 3-5.1(j) so as to include the following language:“Disciplinary resignation is the functional equivalent of disbarment in that both sanctions terminate the license and privilege to practice law and both require readmission to practice under the Rules of the Supreme Court Relating to Admissions to the Bar.”The court also added language to Rule 3-5.1(f) that holds, “Disbarment is the presumed sanction for lawyers found guilty of theft from a lawyer’s trust account or special trust fund received or disbursed by a lawyer as guardian, personal representative, receiver, or in a similar capacity such as a trustee under a specific trust document. A respondent found guilty of such theft shall have the opportunity to offer competent, substantial evidence to rebut the presumption that disbarment is appropriate.”The court also amended Rule 4-8.3 (Reporting Professional Misconduct) to provide a limited exception for the Bar’s Law Office Management Assistance Service. The exception states that a lawyer acting on behalf of LOMAS “shall not have an obligation to disclose knowledge of the conduct of another member of The Florida Bar that raises a substantial question as to the other lawyer’s fitness to practice, if the lawyer employed by or acting on behalf of LOMAS acquired the knowledge while engaged in a LOMAS review of the other lawyer’s practice.” If the LOMAS review is conducted as a part of a disciplinary sanction, however, the limitation is not applicable and the LOMAS lawyer is required to report the finding.The court also created new Rule 6-3.7 to create an emeritus specialist status to recognize the contribution of a Board Certified Lawyer in the advancement of the speciality area through related career activities that do not constitute the actual practice of law.The rule states that to seek emeritus specialist status the lawyer shall:• Be currently board certified by The Florida Bar.• Be a member of The Florida Bar in good standing.• No longer be engaged in the practice of law.• Otherwise comply with the applicable rules and policies governing emeritus specialist status. March 1, 2001 Managing Editor Regular News Supreme Court hands down Bar rules opinionlast_img read more